EXHIBIT 4-K
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PREFERRED SECURITIES GUARANTEE AGREEMENT
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PREFERRED SECURITIES GUARANTEE AGREEMENT
PACIFIC TELESIS FINANCING { }
Dated as of __________, 1995
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CROSS REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d); 3.2(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(c)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.10
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(b)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
_________________________
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not have any bearing upon the interpretation of any
of its terms or provisions.
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of _____________,
1995, is executed and delivered by Pacific Telesis Group, a Nevada corporation
(the "Guarantor"), and The First National Bank of Chicago, a national banking
association, as trustee (the "Preferred Guarantee Trustee"), for the benefit
of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of Pacific Telesis Financing { }, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of __________, among the trustees of the Issuer named
therein, the Guarantor as Sponsor and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof $__________ aggregate stated liquidation amount of
Preferred Securities designated the ____% Trust Originated Preferred
Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee Agreement, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee agreement
(the "Common Securities Guarantee Agreement") in substantially identical terms
to this Guarantee Agreement for the benefit of the holders of the Common
Securities (as defined herein) except that if an Event of Default (as defined
in the Indenture (as defined herein)), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Guarantee
Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1Definitions and Interpretation
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires; and
(f)a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to bind
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such Person.
"Business Day" means any day other than a day on which banking institutions in
New York, New York are authorized or required by law to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred Securities.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means the periodic distribution and other payments payable to
Holders of Preferred Securities in accordance with the terms of the Preferred
Securities set forth in Exhibit A to the Declaration.
"Guarantee Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid
or made by the Issuer: (i) any accrued and unpaid Distributions that are
required to be paid on such Preferred Securities to the extent the Issuer
shall have funds available therefor, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price")to the extent the Issuer has funds available therefor, with respect to
any Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the distribution of Subordinated Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration or the redemption of all the Preferred Securities upon the
maturity or redemption of the Subordinated Debentures), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions
on the Preferred Securities to the date of payment, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
If an event of default under the Indenture has occurred and is continuing, the
rights of holders of the Common Securities to receive payments under the
Common Securities Guarantee Agreement are subordinated to the rights of
Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any registered owner shown on the Register of the Issuer
of any Preferred Securities.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate of
the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Preferred
Guarantee Trustee.
"Indenture" means the Indenture dated as of ___________, 1995, as supplemented
by the First Supplemental Indenture dated as of ___________, 1995, each being
among Pacific Telesis Group as issuer (the "Subordinated Debenture Issuer")
and The First National Bank of Chicago, as trustee and any indenture
supplemental thereto pursuant to which certain subordinated debt securities of
the Subordinated Debenture Issuer are to be issued to the Property Trustee of
the Issuer.
"Majority in liquidation amount of the Preferred Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all Preferred Securities.
In determining whether the Holders of the requisite amount of Preferred
Securities have voted, if the Preferred Securities remain in the form of
global securities, Holders shall be deemed to be the Persons who own
beneficial interests in such global securities as reflected on the books of
The Depository Trust Company, or any successor depository, or on the books of
a Person maintaining an account with such depository, directly or indirectly
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(in each case in accordance with the rules of the depository) and Preferred
Securities which are owned by the Guarantor or any Affiliate of the Guarantor
or any other obligor on the Preferred Securities shall be disregarded for the
purpose of any such determination
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person. Any Officer's Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that such officer signing the Officer's Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation on which the statements or opinions contained in such
Officer's Certificate are based;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency, authority or political subdivision thereof.
"Preferred Guarantee Trustee" means The First National Bank of Chicago until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee Trustee,
any vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Corporate Trust Department
of the Preferred Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"66 2/3% in liquidation amount of the Preferred Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of 66 2/3% of the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities. In
determining whether the Holders of the requisite amount of Preferred
Securities have voted, if the Preferred Securities remain in the form of
global securities, Holders shall be deemed to be the Persons who own
beneficial interests in such global securities as reflected on the books of
The Depository Trust Company, or any successor depository, or on the books of
a Person maintaining an account with such depository, directly or indirectly
(in each case in accordance with the rules of the depository) and Preferred
Securities which are owned by the Guarantor or any Affiliate of the Guarantor
or any other obligor on the Preferred Securities shall be disregarded for the
purpose of any such determination
"Subordinated Debentures" means the series of subordinated debt securities of
the Guarantor designated the ___% Subordinated Deferrable Interest Debentures
due ____ held by the Property Trustee (as defined in the Declaration) of the
Issuer.
Subsidiary" means any corporation of which at the time of determination the
Guarantor, directly and/or indirectly through one or more Subsidiaries owns
50% or more of the shares of the voting stock of such corporation.
"Successor Preferred Guarantee Trustee" means a successor Preferred Guarantee
Trustee possessing the qualifications to act as Preferred Guarantee Trustee
under Section 4.1.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended to the
date of this Guarantee Agreement.
"25% in liquidation amount of the Preferred Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of 25% of the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities. In
determining whether the Holders of the requisite amount of Preferred
Securities have voted, if the Preferred Securities remain in the form of
global securities, Holders shall be deemed to be the Persons who own
beneficial interests in such global securities as reflected on the books of
The Depository Trust Company, or any successor depository, or on the books of
a Person maintaining an account with such depository, directly or indirectly
(in each case in accordance with the rules of the depository) and Preferred
Securities which are owned by the Guarantor or any Affiliate of the Guarantor
or any other obligor on the Preferred Securities shall be disregarded for the
purpose of any such determination
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee agreement
limits, qualifies or conflicts with the duties imposed by Section
310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2 Lists of Holders of Securities.
(a) The Guarantor will furnish or cause to be furnished to the Preferred
Guarantee Trustee, not less than 45 days nor more than 60 days after
each date (month and day) that is a Distribution payment date under
the Declaration, but in no event less frequently than semiannually,
and at such other times as the Preferred Guarantee Trustee may
request in writing, within 30 days after receipt by the Guarantor of
any such request, a list in such form as the Preferred Guarantee
Trustee may reasonably require containing all the information in the
possession or control of the Guarantor, as to the names and
addressees of the Holders of Preferred Securities, obtained since
the date as of which the next previous list, if any, was furnished.
Any such list may be dated as of a date not more than 15 days prior
to the time such information is furnished and need not include
information received after such date.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture
Act.
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SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such evidence
of compliance with any conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of
an Officer's Certificate.
SECTION 2.6 Guarantee Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred Securities may,
by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Guarantee Event of Default and its consequences. Upon such waiver,
any such Guarantee Event of Default shall cease to exist, and any Guarantee
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon. The Guarantor may set a special record date for
purposes of determining the identity of the Holders of the Preferred
Securities entitled to vote or consent to any action by vote or consent
authorized or permitted by this Section 2.6. Such record date shall be the
later of 15 days prior to the first solicitation of such consent or the date
of the most recent list of Holders furnished to the Preferred Guarantee
Trustee pursuant to Section 2.2 of this Guarantee Agreement prior to such
solicitation.
SECTION 2.7 Guarantee Event of Default Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of a Guarantee Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Preferred Securities,
notices of all Guarantee Events of Default known to the Preferred
Guarantee Trustee, unless such defaults have been cured before the
giving of such notice, provided, that, the Preferred Guarantee
Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Preferred
Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Preferred
Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the Preferred
Guarantee Trustee shall have received written notice, or a
Responsible Officer charged with the administration of the
Declaration shall have obtained written notice, of such Guarantee
Event of Default.
(c) The provisions of Section 315(e) of The Trust Indenture Act shall be
excluded from this Guarantee Agreement.
Section 2.8 Disclosure of Information.
The disclosure of information as to the names and addresses of the Holders
of the Preferred Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing law, or any law
hereafter enacted which does not specifically refer to Section 312 of the
Trust Indenture Act, nor shall the Guarantee Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
SECTION 2.9 Conflicting Interests.
The Declaration shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 2.10 Limitation on Suits by Holders.
No Holder of any Preferred Security shall have any right by virtue or by
availing of any provision of this Guarantee Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
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Guarantee Agreement or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless such Holder previously shall have given to
the Preferred Guarantee Trustee written notice of a continuing Guarantee Event
of Default, as hereinbefore provided, and unless also the Holders of not less
than 25% in liquidation amount of the Preferred Securities than outstanding
shall have made written request upon the Preferred Guarantee Trustee to
institute such action, suit or proceeding in its own name as Preferred
Guarantee Trustee hereunder and shall have offered to the Preferred Guarantee
Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby (including the
reasonable fees of counsel for the Preferred Guarantee Trustee), and the
Preferred Guarantee Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and no direction inconsistent with such
written request shall have been given to the Preferred Guarantee Trustee
pursuant to this Section 2.10; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Preferred Security with
every other taker and Holder and the Preferred Guarantee Trustee, that no one
or more Holders of Preferred Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Guarantee to
affect, disturb or prejudice the rights of the Holders of any other of such
Preferred Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Guarantee, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Preferred Securities. For the protection and
enforcement of the provisions of this Section 2.10, each and every Holder and
the Preferred Guarantee Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provisions in this Guarantee Agreement, the right of
any Holder of any Preferred Security to receive payment of the Guarantee
Payments when due or to institute suit for the enforcement of any such payment
on or after such respective dates shall not be impaired or affected without
the consent of such Holder.
SECTION 2.11 Preferred Guarantee Trustee May File Proofs of Claim.
Upon the occurrence of a Guarantee Event of Default, the Preferred Guarantee
Trustee is hereby authorized to (a) recover judgment, in its own name and as
trustee of an express trust, against the Guarantor for the whole amount of any
Guarantee payments remaining unpaid and (b) file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
its claims and those of the Holders of the Preferred Securities allowed in any
judicial proceedings relative to the Guarantor, its creditors or its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities,
and the Preferred Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b)
or to a Successor Preferred Guarantee Trustee on acceptance by such
Successor Preferred Guarantee Trustee of its appointment to act as
Successor Preferred Guarantee Trustee. The right, title and
interest of the Preferred Guarantee Trustee shall automatically vest
in any Successor Preferred Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If a Guarantee Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Guarantee Agreement
for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Guarantee Event of Default and after the curing of all Guarantee
Events of Default that may have occurred, shall undertake to perform
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only such duties as are specifically set forth in this Guarantee
Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Preferred Guarantee Trustee. In
case a Guarantee Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6), the Preferred Guarantee
Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Guarantee Events of
Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the Preferred
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement, and no
implied covenants or obligations shall be read into this
Guarantee Agreement against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Preferred
Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee shall
be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee
Agreement;
(ii) the Preferred Guaranty Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
of the Preferred Guarantee Trustee, unless it shall be proved
that the Preferred Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
not less than a Majority in liquidation amount of the Preferred
Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Preferred
Guarantee Trustee, or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if the Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity against
such risk or liability is not reasonably assured to it.
e) The Preferred Guarantee Trustee may authorize one or more persons
(each a Paying Agent") to pay Guarantee Payments and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Preferred Guarantee
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Trustee at any time and a successor Paying Agent or additional
Paying Agents may be appointed at any time by the Preferred
Guarantee Trustee.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by a
Direction or an Officer's Certificate.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Preferred Guarantee Trustee
(unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon
an Officer's Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred
Guarantee Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Preferred
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Preferred Guarantee Trustee; provided that, nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of a Guarantee
Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Preferred Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the
Preferred Guarantee Trustee shall not be responsible for any
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misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee
Trustee or its agents alone shall be sufficient and effective
to perform any such action. No third party shall be required
to inquire as to the authority of the Preferred Guarantee
Trustee to so act or as to its compliance with any of the terms
and provisions of this Guarantee Agreement, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's
or its agent's taking such action.
(x) Whenever in the administration of this Guarantee Agreement the
Preferred Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of a
Majority in liquidation amount of the Preferred Securities,
(ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Preferred Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty.
c) The Guarantor assumes responsibility for being and remaining
informed of the financial condition of the Subordinated Debenture
Issuer and of all other circumstances bearing upon the risk of non-
payment of amounts owing under the Preferred Securities which
diligent inquiry would reveal and agrees that the Holders of the
Preferred Securities shall have no duty to advise the Guarantor of
information known to any of them regarding such condition or any
such circumstances.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee Agreement.
The recitals contained in this Guarantee Agreement shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not
assume any responsibility for their correctness. The Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Guarantee Agreement.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as
an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $150,000,000,
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
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examining authority referred to above, then, for the purposes
of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustees.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Guarantee Trustee
and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred
Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the
Preferred Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Preferred Guarantee Trustee may petition
any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Preferred Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Issuer
to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Issuer or any
other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
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SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with,
the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest
payment period on the Subordinated Debentures or any extension of
the maturity date of the Subordinated Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation on the Holders or any other Person to give notice
to, or obtain consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 5.4 Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the
Preferred Guarantee Trustee in respect of this Guarantee Agreement
or exercising any trust or power conferred upon the Preferred
Guarantee Trustee under this Guarantee Agreement.
(b) If the Preferred Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights
under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer, the Preferred Guarantee Trustee or
any other Person.
SECTION 5.5 Enforcement of Guarantee.
The Guarantor and the Preferred Guarantee Trustee expressly acknowledge that
(i) this Guarantee Agreement will be deposited with the Preferred Guarantee
Trustee to be held for the benefit of the Holders; (ii) the Preferred
Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf
of the Holders; (iii) Holders representing not less than a Majority in
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liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available
in respect of this Guarantee Agreement including the giving of directions to
the Preferred Guarantee Trustee, or exercising any trust or other power
conferred upon the Preferred Guarantee Trustee under this Guarantee Agreement,
and (iv) if the Preferred Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder of Preferred Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Issuer,
the Preferred Guarantee Trustee, or any other Person.
SECTION 5.6 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of collection.
SECTION 5.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Preferred Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders. The
Guarantor shall not exercise its right of subrogation if such exercise would
adversely affect the rights of Holders of any outstanding Preferred
Securities.
SECTION 5.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
SECTION 5.9 Unconditional Nature of Obligations.
The obligations of the Guarantor under this Guarantee Agreement shall be
absolute and unconditional and shall remain in full force and effect until the
entire liquidation amount of all outstanding Preferred Securities shall have
been paid and such obligation shall not be affected, modified or impaired upon
the happening from time to time of any event, including without limitation any
of the following, whether or not with notice to, or the consent of, the
Guarantor:
(a) the waiver, surrender, compromise, settlement, release or
termination of any or all of the obligations, covenants or
agreements of the Issuer under the Preferred Securities;
(b) the failure to give notice to the Guarantor of the occurrence of a
default under the Preferred Securities;
(c) the waiver, compromise or release of the payment, performance or
observance by the Issuer or by the Guarantor, respectively, of any
or all of the obligations, covenants or agreements contained in the
case of the Issuer, in the Preferred Securities, and, in the case of
the Guarantor, in this Guarantee Agreement;
(d) the extension of the time for payment of the liquidation amount of
any Preferred Securities or of the time for performance of any other
obligations, covenants or agreements under or arising out of the
Preferred Securities;
e) the modification or amendment (whether material or otherwise) of any
obligation, covenant or agreement set forth in the Preferred
Securities;
(f) any failure, omission, delay or lack on the part of any Holder to
enforce, assert or exercise any right, power or remedy conferred on
14
it in or in connection with the Preferred Securities;
(g) the voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets, marshalling of
assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other
similar proceedings affecting the Guarantor or the Issuer or any of
the respective assets of either of them, or any allegation or
contest of the validity of this Guarantee Agreement in any such
proceeding;
(h) any defense based upon any legal disability of the Issuer or, to the
extent permitted by law, any release, discharge, reduction or
limitation of or with respect of any sums owing by the Issuer or any
other liability of the Issuer to any Holder;
(i) to the extent permitted by law, the release or discharge by
operation of law of the Guarantor from the performance or observance
of any obligation, covenant or agreement contained in this Guarantee
Agreement;
(j) the default or failure of the Guarantor fully to perform any of its
obligations set forth in this Guarantee Agreement; or
(k) the invalidity of the Preferred Securities or any defense which the
Issuer may have against any Holder.
If any payment by the Issuer to any Holder is rescinded or must be returned by
such Holder, the obligations of the Guarantor hereunder shall be reinstated
with respect of such payment.
No set-off, counterclaim, reduction, or diminution of any obligation, or any
defense of any kind or nature which the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee Agreement.
The Guarantor assumes responsibility for being and remaining informed of the
financial condition of the Issuer and of all other circumstances bearing upon
the risk of nonpayment of amounts owing under the Preferred Securities which
diligent inquiry would reveal and agrees that no Holder shall have any duty to
advise the Guarantor of information known to it regarding such condition or
any such circumstances.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there shall have
occurred a Guarantee Event of Default or an event of default under the
Declaration or if the Subordinated Debenture Issuer shall have selected an
Extended Interest Payment Period (as defined in the First Supplemental
Indenture, then (a) the Guarantor shall not declare or pay any dividend on, or
make any distributions with respect to, or redeem, purchase, or acquire any of
its capital stock and (b) the Guarantor shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Guarantor which rank pari passu with or junior
to the Subordinated Debentures, provided, that, the foregoing restriction in
this Section 6.1 (a) shall not apply to any stock dividends paid by the
Guarantor where the dividend stock is the same stock as that on which the
dividend is being paid. In addition, so long as any Preferred Securities
remain outstanding, the Guarantor (i) will remain the sole direct or indirect
owner of all of the outstanding Common Securities and shall not cause or
permit the Common Securities to be transferred except to the extent such
transfer is permitted under Section 9.1(c) of the Declaration; provided that
any permitted successor of the Guarantor under the Indenture may succeed to
the Guarantor's ownership of the Common Securities and (ii) will not take any
action which would cause the Issuer to be treated as other than grantor trust
for United States federal income tax purposes except in connection with a
distribution of Subordinated Debentures as provided in the Declaration.
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SECTION 6.2 Ranking.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor except those made pari passu or subordinate
by their terms, (ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
If an Event of Default has occurred and is continuing under the Indenture, the
rights of the holders of the Common Securities to receive any payments under
the Common Securities Guarantee Agreement shall be subordinated to the rights
of the Holders of Preferred Securities to receive Guarantee Payments
hereunder.
SECTION 6.3 Guarantor Existence.
The Guarantor shall not consolidate with or merge into any other corporation
or convey, transfer or lease, or permit one or more of its Subsidiaries to
convey, transfer or lease, all or substantially all of the property and assets
of the Guarantor and its Subsidiaries on a consolidated basis, to any Person,
unless the corporation formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Guarantor and its Subsidiaries
on a consolidated basis shall expressly assume the Guarantor's obligations
hereunder.
This Section shall only apply to a merger or consolidation in which the
Guarantor is not the surviving corporation and to conveyances, leases and
transfers by the Guarantor as transferor or lessor.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate upon the earliest of (i) full payment
of the Redemption Price of all Securities, (ii) the distribution of the
Subordinated Debentures to the Holder's of all of the Preferred Securities or
(iii) full payment of the amounts payable in accordance with the Declaration
upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Preferred Securities must restore payment of
any sums paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner that such
Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Guarantee
Agreement or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any
Person as to matters the Indemnified Person reasonably believes are
within such other Person's professional or expert competence and who
has been selected with reasonable care by or on behalf of the
Guarantor, including information, opinions, reports or statements as
16
to the value and amount of the assets, liabilities, profits, losses,
or any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Preferred Securities might
properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee
Agreement and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this in accordance with this Guarantee
Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct
with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by the Guarantor prior to the final
disposition of such claim, demand, action, suit or proceeding upon
receipt by the Guarantor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the rights of
Holders (in which case no consent of Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of at
least 66-2/3% in liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all the outstanding Preferred Securities. The provisions of Section 12.2 of
the Declaration with respect to meetings of Holders of the Securities apply to
the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Guarantee Agreement shall be in writing, duly
signed by the party giving such notice, and shall be electronically
communicated or hand delivered or sent by overnight courier, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other
address as the Preferred Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice
of to the Holders of the Preferred Securities):
17
Pacific Telesis Group
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ____________________
(c) If given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
For all purposes of this Guarantee Agreement, a notice or communication will
be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it
is delivered unless (i) that day is not a Business Day in the city
specified (a Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day, or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by
the sender unless the date of transmission and confirmation is not a
Local Business Day, in which case, on the next succeeding Local
Business Day.
Any notice, direction, requires, demand, consent or waiver by the Subordinated
Debenture Issuer, or any Holder of Securities to or upon the Preferred
Guarantee Trustee shall be deemed to have been sufficiently given, made or
filed, for all purposes, if given, made or filed in writing at the principal
office of the Preferred Guarantee Trustee in accordance with the provisions of
this Section 9.3.
SECTION 9.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders of the
Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
Pacific Telesis Group
By:_______________________________
Name:_____________________________
Title:____________________________
The First National Bank of Chicago
as Preferred Guarantee Trustee
By:_______________________________
Name:_____________________________
Title:____________________________
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